Nanca Wallen Javier v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 194/2024, [2024] HKCA 909

On Appeal from [2024] HKCFI 1114

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 194 OF 2024

(ON APPEAL FROM HCAL NO 2242 OF 2023)

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BETWEEN

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.This is an appeal against the decision of Deputy High Court Judge K. W. Lung (“Judge”)  on 7 May 2024[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”)  dated 16 November 2023.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”)  dated 19 October 2021 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of the Philippines born in 1987.  She last entered Hong Kong on the strength of her Philippine passport to work as a foreign domestic helper on 25 January 2019 and was permitted to remain until 25 January 2021 or two weeks after termination of the employment contract, whichever was earlier.  Her employment contract was prematurely terminated on 30 September 2020 and she was granted an extension of stay as a visitor until 13 November 2020.  The applicant was subsequently granted permission to remain as a foreign domestic helper on 6 November 2020 until 6 November 2021 or two weeks after termination of employment contract, whichever was earlier.  Her employment contract was prematurely terminated on 6 February 2021 and she was granted an extension of stay as a visitor until 31 March 2021.  She later attempted to apply for further extensions of stay but was refused on 31 March 2021 and 22 April 2021 respectively.  The applicant was required to leave Hong Kong on or before 7 May 2021 but she overstayed.  On 10 May 2021, the applicant surrendered to the Immigration Department.  She raised her claim for non-refoulement protection by way of written submissions on 14 and 20 May 2021.  The applicant’s claim was made on the basis that if she returned to the Philippines, her father and husband would harm or kill her due to her pregnancy with her boyfriend in Hong Kong.  The factual background of the applicant’s claim was set out at [6.1] to [6.23] of the Director’s decision.

3.By notice of decision dated 19 October 2021, the Director assessed the applicant’s claim in relation to all applicable risks and determined it against her.  Those grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5]

4.The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 29 September 2023, during which the applicant gave evidence and answered questions from the Board.  In favour of the applicant’s credibility, the Board found that her account was simple, internally consistent, reasonably detailed, coherent and plausible.

5.The Board proceeded to consider the risk of harm faced by the applicant if she was refouled to the Philippines.  It found there was in fact no real risk of harm if the applicant returned to the Philippines, because the COI showed that were mechanisms in place to protect female victims of domestic violence accessible to the applicant, reasonable state protection was available, and internal relocation to other parts of the Philippines, such as Manila, was safe and reasonable.

6.In conclusion, the Board held that there was no real risk of harm for the applicant in the event of refoulement to the Philippines.  By its written decision dated 16 November 2023, the Board dismissed the applicant’s appeal in respect of all the applicable grounds and confirmed the Director’s decision.

The Judge’s decision in the court below

7.On 13 December 2023, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision.  She did not specify any ground for judicial review in the Form 86 or in the accompanying affirmation.  In the latter, she simply repeated the basis of her claim for non-refoulement protection, stated that no one would take care of her son in Hong Kong if she was refouled as her son’s father had to work, and annexed the Board’s decision.

8.An oral hearing was held on 26 February 2024.  The Judge considered the application on the basis of the documents and the oral submissions of the applicant.  On 7 May 2024, the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons were set out in [16] to [20] of the Form CALL-1 as follows:

“ 16. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

17. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said it is not easy for the police to help her. Her son is here in Hong Kong and nobody will take care of him if she returns to the Philippines. She does not want her son to leave his father here. Also, it will be dangerous for her to return to the Philippines with her son as she does not know what her ex-husband will do to them.

18. The Board accepted the applicant’s evidence. But, for the reasons set out in paragraphs 10-12, the Board takes the view that the applicant and her child have no real risk of harm if they return to the Philippines. These facilities answer the applicant’s complaints in paragraph 15 and before this Court.

19. There is no valid reason from the applicant that the Board’s views should not be accepted. The Court sees no reason to interfere with the Board’s Decision.

20.  The applicant therefore fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.”

Appeal to this Court

9.On 16 May 2024, the applicant filed her Notice of Appeal against the Judge’s decision.  Her stated grounds of appeal were, essentially, that no one would take care of her son, they are both safe in Hong Kong, and she would like to give her son a happy family.

10.The applicant has lodged written submissions in which she stated that her son is a Hong Kong permanent resident, that the Board ignored her son’s rights and failed to consider her child’s situation together with hers, that it would be dangerous to take her son back to the Philippines, and that her son’s father could not take care of their son alone without her in Hong Kong.  She further submits that she informed the Board she was afraid that her son would be in danger if she took him back to the Philippines, but she never said that her son’s father could take care of their son.  As her son’s father could not take care of their son alone in Hong Kong without the applicant, she would have to be refouled to the Philippines together with her son.  She hopes that the Board can re-examine her situation with her son.  Moreover, the applicant states that her partner could only financially support their daily living expenses but not for internal relocation.  She also states that she needs to contact her daughter, so her husband could easily find out her address in the Philippines.

11.At the hearing, the applicant stated that she had nothing to add to what was already in the papers before the court.  We shall accordingly determine the appeal on the basis of the available documents, materials and evidence. 

Discussion

12.In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

13.In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because the risk did not reach the minimum level of harm and state protection and internal relocation were reasonably viable options.  These are findings of fact open to the Board based on the evidence it received and for the reasons it gave.  Although the applicant submits that the Board should re-examine her case together with the situation of her son, her son is not a party or an applicant to this non-refoulement claim.  Her son has no legal basis to seek non-refoulement protection if he is a Hong Kong permanent resident.  The applicant’s request to be allowed to stay in Hong Kong as the mother of a permanent resident has nothing to do with her claim for non-refoulement protection in Hong Kong, which is the sole subject matter of the intended judicial review.   The applicant has failed to show any reasonably arguable ground for saying that the Board’s decision should be impugned due to public law errors.

14.Equally, the applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision.  We are not satisfied that there is any error in the Judge’s decision.

15.The applicant’s appeal is accordingly dismissed.

The Applicant appeared in person